Rare discrimination finding by EPA civil-rights office

Introduction

The Genesee Power Station in Flint, Mich., a poor, largely African-American city.

The U.S. Environmental Protection Agency’s civil-rights office has made a rare finding of discrimination, saying the Michigan Department of Environmental Quality treated African American residents of Flint unfairly during the permitting of a power plant more than two decades ago.

In a letter dated Jan. 19, the last full day of the Obama administration, the EPA’s External Civil Rights Compliance Office said the evidence showed that “African Americans were treated less favorably than non-African Americans” during permit hearings for the Genesee Power Station – which burns wood waste and other debris – from 1992 through 1994. A “preponderance of the evidence in EPA’s record would lead a reasonable person to conclude that race discrimination was more likely than not the reason …,” office director Lilian Dorka wrote to the complainant, Father Phil Schmitter of the St. Francis Prayer Center in Flint.

In a statement, Schmitter said, “Communities of color and schoolchildren have had to grow up near this horrible power plant and be subjected to its harmful emissions. It’s unbelievable that it took EPA decades to make this finding, but it’s important to send a clear message to MDEQ, even now, that it needs to change the way it does business.”

A Center for Public Integrity investigation in 2015 detailed the EPA’s anemic enforcement of Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin by recipients of federal funding. The analysis showed that the civil-rights office hadn’t made a finding of discrimination in 22 years – apart from a preliminary one in 2011 – despite having received hundreds of complaints. Last year, the U.S. Commission on Civil Rights cited the Center’s work in a performance review that found the EPA was failing to meet its obligations under the act.

In last week’s letter to Schmitter, the EPA found that MDEQ officials “deviated from … standard operating procedures [at public hearings] on more than one occasion to the detriment of African Americans.” For example, it said the department used armed guards to intimidate speakers and closed hearings before all who wanted to speak had done so. The letter recommends, among other things, that the MDEQ improve its public-participation policies and add information about non-discrimination laws to its website. The department has failed to operate a “foundational nondiscriminatory program” for almost 30 years, the letter said.

In a statement, the department said it “disagrees with the EPA assertion that MDEQ has not taken sufficient action to address public participation, especially in minority communities… Above all, our purpose is to respect Michigan residents and to protect public health and the environment.”

The EPA’s finding on the Genesee plant is separate from “additional and current serious concerns” the agency has expressed about the MDEQ’s handling of the drinking-water crisis in Flint. There is no public record of any civil-rights cases having been filed, but the EPA told BNA it received at least two emailed complaints alleging discrimination by state, county and city officials after Flint’s water supply was tainted with brain-damaging lead in 2014.

December 18, 2015

December 1, 2015

In another letter on Jan. 19, the EPA announced that the New Mexico Environment Department had agreed to take steps to improve the public-participation process for a proposed hazardous-waste disposal site in the southeastern part of the state. A group called Citizens for Alternatives to Radioactive Dumping had filed a civil-rights complaint against the department in 2002, alleging it had shown a pattern of discrimination against Spanish-speaking residents. Under the agreement, the department said it would “develop, publish and implement written procedures to ensure meaningful access to all of NMED’s programs and activities by all persons, including access by limited English-proficient individuals…”

Deborah Reade, who filed the complaint on behalf of the citizens’ group, said in a statement, “It took far too long to get to this point. But finally there’s an agreement in place that should lead to more equitable public participation so communities’ voices are heard when permits to pollute are being considered. We’ll be watching to make sure that New Mexico implements the agreement.”

The EPA’s findings in the Michigan and New Mexico cases represent an uptick in activity by a civil-rights office – recently moved into the agency’s Office of General Counsel – long criticized for failing to act on complaints alleging Title VI violations.

“Credit for the EPA’s movement on civil rights complaints goes to the communities and groups that pushed hard for discriminatory practices to be addressed,” said Marianne Engelman Lado, a visiting professor at Yale Law School and a former attorney with the public-interest law firm Earthjustice, which has lodged several complaints with the office on behalf of minority communities.